First Liberty’s general counsel, Michael Berry, sent the letter to Fuller on Friday morning asking him to more narrowly tailor his order so as not to burden churches and other religious institutions.
Within hours of receiving the letter, McKinney city officials changed the order.
“We were not surprised with how they responded, but we were surprised with how quickly it came. We certainly commend the city of McKinney,” Berry told The Texan.
The order had required that religious and worship services be conducted only online or by teleconference and limited those conducting the service to ten people. It was changed to “allow religious services by video or teleconference, or by other means that comply with the CDC’s guidelines for social distancing.”
First Liberty had advised churches to follow the White House and CDC guidelines for slowing the spread of the virus.
Under the Texas Religious Freedom Restoration Act, the government can only substantially burden the free exercise of religion if it has a compelling governmental interest and does so by the least restrictive means possible.
“You can ensure health and safety but do so in a way that doesn’t violate the federal or state law or the Constitution,” Berry said.
Berry pointed out that the first order, before amended, placed a substantial burden on religious practices and that the city did not use the least restrictive means available to it.
In contrast to its limit on churches, McKinney’s previous order did not put a ten-person limit on other locations listed as essential, like the number of staff preparing take-out food at a restaurant or on workers in child care facilities.
However, First Liberty asserts that “religious exercise is an essential and constitutionally protected activity” listed in the First Amendment to the United States Constitution.
Berry pointed to creative ways that churches were staying within the CDC guidelines while still meeting together, like “drive-in” worship services where participants stayed in their cars to avoid contact with others and gathering in small groups of ten or less. Those were prohibited by McKinney’s prior order.
Additionally, McKinney, found within Collin County, issued an order that was more restrictive than the one issued by Collin County Judge Chris Hill. The county has issued an order “utilizing the least restrictive means possible and encouraging the highest level of personal responsibility.”
It did not specifically limit religious gatherings but encouraged residents to avoid gathering in groups of more than ten.
When two orders are in conflict, Berry said, the county order supersedes according to Texas Local Government Code Section 418.108 (h).
When asked about other orders that might be problematic, Berry said they would be taking a look at orders all around Texas and the country. A citizen who believes an order in their county or city is unconstitutionally burdening the freedom of religion can consult the guidance on their website and is welcome to bring it to the attention of First Liberty.
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Kim Roberts is a reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.